Tuesday, July 07, 2020

Saba Saba at Thirty

"Yote yawezekana bila Moi!" was an anthem as well as a repudiation of forty years of Kanuism. It was the culmination of events that kicked off in earnest on Saba Saba - 1990. Thirty years after Saba Saba, and eighteen years after Moi shuffled off the stage, it is shocking how little progress we have made on the road to political liberation. Kenya and Kenyans are still hostage to fantasies of benevolent dictatorship as a panacea for economic malaise.

Saba Saba at Thirty comes at a time when political and economic freedoms have been rolled back startlingly fast despite a freedom-oriented constitution. Senior officers of the State still ignore judicial decrees. Policemen still murder civilians with impunity. Academic freedom is notable by the dearth of free-wheeling discourse designed to free minds and challenge received wisdoms. Educational prospects are hobbled by "market-oriented" curricula designed to create a generation of spanner boys. religious freedom is marked by how fast a preacher will acquire his first Mercedes-Benz G-Wagen. Kenya has all the accoutrements of freedom - a Constitution, a freely-elected legislature, a market economy, an unfettered right to worship, and what have you - yet its peoples are spectacularly un-free.

What Kenya's first and second presidents attempted to achieve by brute force, the third and fourth have achieved by velvet gloves and mailed fists simultaneously. The first and most successful gambit was to co-opt the second liberation movement. Leading lights were offered money, power and high office. Many took the bait. The tail is now wagging the dog. The second was to dress up autocracy in the vestments of visible economic progress - soldiers building pavements and the like.

The hard and necessary work of institution-building leading to nation-building has been abandoned as too hard, too contentious, too expensive and too time-consuming. In our rush to put a microwave in every kitchen and a nduthi in every driveway and an iPhone in every hand, many are willing to tolerate the murder of toddlers in their cribs, teenagers in their balconies and the homeless in their gunias if it means that down the road, the privations a lack of institution-building has engendered will be wiped away. Because we ave hollowed out the Kenyan academy and replaced it with academic buccaneers, there are few Kenyans who are able to prophesy that in less than a generation, privation will be a defining feature of Kenya - not an anomaly. The dream that was Saba Saba is becoming a living nightmare.

On the day Willy Kimani, his client and their driver were murdered, it has been a matter of time before the anti-Saba-Saba forces shed their masks and revealed their true selves. If you are still waiting for Huduma Namba and its acolytes to lead to better public services and, in turn, economic and political freedom, you are among the multitudes who have never known what Saba Saba represented, what it imagined, what we dreamt of. You are a victim of false prophets and the illusory power of mass entertainment as political and academic freedom.

Friday, June 12, 2020

Running out of time

The night that the nighttime curfew went into effect, many Kenyans were assaulted by police officers for violating the terms of the curfew. The curfew had been imposed to prevent Kenyans from congregating in groups in entertainment joints and thereby increase the risk of spreading the coronavirus disease, Covid-19. The first week of the nighttime curfew also saw the shooting death of a child when a policeman fired in the air while attempting to enforce the terms of the curfew. The first month of the nighttime curfew saw one of the more absurd events: police and county officials forced a bereaved family to bury their loved one in the dead of night without even allowing them to hold a wake in his name. Commentators loudly condemned the actions of the police, though there were a few who echoed the Health Cabinet Secretary's stand: if you violate the terms of the curfew, regardless of the reason, you have no one to blame but yourself.

Kenyans' relationship with members of the National Police Service is built on well-travelled history. Kenyans have been policed with brute force for decades. And when they are not being policed, they are being extorted by police authorities. On the rare occasion that the police and the people are on the same side, the kumbaya moment rarely lasts. There are thousands of honourable police officers, and a few of them have come to the public's attention through their extraordinary acts and achievements. But as an institution, the National Police Service does not live up to the ideals of a "service" but the opprobrium that the impunity of a "force" has covered it like the stench from a skunk pervades a room.

As Kenyans have battled Covid-19 and the police, some police officers have distinguished themselves by descending to new depths of cruelty. The case of Mercy Cherono which, without social media, would not have come to light is only the latest. How she was assaulted is redolent of the anti-Black violence meted on Black Americans by police forces of the United States. No one could possible agree that it is normal for police officers to tie a suspected criminal offender to the back of a motorcycle and drag them along the ground in the name of "enforcing the law" regardless of what the offence is. The police are not supposed to be a weapon for carrying out revenge fantasies before the pubic prosecutor and, if convicted, the prisons service get their hands on the offender. What those policemen, and the bystanders, did was cruel, vindictive and totally in keeping with what policing is in Kenya in the absence of any real reform.

Cruel and violent events in the United States have shone a light on what policing looks like when it is separated from human rights and protection of the people. Kenya is no exception. From the moment Mwai Kibaki's Government was forced to agree to a timetable for constitutional reforms, the question of how to reform policing was a core component of those reforms. The securocracy resisted reforms tooth and nail. When the Constitution was promulgated in 2020, the securocracy had won. What we got was the facade of reform without any real change. Police training has incorporated modern tools but its essential nature remains the same: it is a weapon for browbeating the people whenever they think the they can challenge the authority of the mighty state. Mercy Cherono is the latest victim of policing in Kenya.

We have been failed by the institutions that are supposed to hold the agents of the State to account. The National Assembly and Senate of Kenya have engaged in supremacy battles with each other, with the Judiciary and with the national Executive with nothing to show for it but bruised political egos. But the people they purport to represent have not received the attention their vote entitles them to. The National Assembly, the one entity with the power over the national purse, keeps forking over billions of shillings to an institution that has violated our rights with impunity without a care in the world. In Hon. Yatani's trillion-shillings Budget, the National Assembly has the opportunity to stamp its authority: withhold funds for policing until true and meaningful reforms are undertaken. If the members of the National Assembly continue to shirk their constitutional duty, one day, when the people burn this bitch down, they may begin with the House that was supposed to offer them succour before they go after the Boys in Blue.

Thursday, June 11, 2020

Why did he bother?

Both were wrong. That is my story and I'm sticking to it.

The Law Society of Kenya has had a troubled decade, in my opinion. The halcyon days of Saba Saba are well and truly behind it. Its leadership since the day Mwai Kibaki ascended the top of the greasy pole of Kenyan politics has comprised some of the strangest characters to don the horsehair of an advocate of the High Court. If you can tell me what Mogeni, SC, Mutua, SC, and Gichui, SC, accomplished, you must have the observational skills of a sleuth from the famed Scotland Yard. Now we have the colourful, reggae-listening, self-styled Duke, Nelson Havi, he of the British racing green leather chesterfields.

It is trite knowledge that #JKL is not the place to bring rigorous intellect or reasoned disquisition. Anyone who volunteers to share a stage with Mr Koinange has no one to blame but himself when he is subjected to the cringe-inducing lunacy that passes for a talk show. Mr Koinange's stage is where the less intellectually-endowed go to spread misinformation, disinformation, conspiracy theories, sex scandals and political rumours. When Mr Havi agreed to appear on Mr Koinange's show to "debate" Mr Manyora, he should have known that it would descend into a chaotic melange of shade-throwing, peevish umbrage, bellow-y tut-tutting by the host, and eye-rolling by the rest of the world. In short, few people would mistake the goings on for rigorous intellectual canvassing of weighty constitutional and political ideas.

They say that when one argues with a fool, no one can tell them apart. I will not lay the charge at their feet. But, be honest, didn't that adage spring to mind when the "debate" shifted gears and boxing terminology entered the fray?

Mr Havi has an unenviable task on his hands. He has to live up to the storied history of the LSK of the 1980s that afflicted Baba Moi's government - and live down the shame listed on the Society by his most recent predecessors. He cannot afford to be distracted by the Koinanges and Manyoras of the day. He must rebuild a Society whose members must prepare for legal practice in the 21st Century. He must hold the Government's feet to the fire regarding fidelity to the Constitution and the written laws of the land. He must stave off the oncoming competition from overseas tech-driven marauders. And he must restore the relevance of the Society to play more than a partisan role in the political struggles of the day. He cannot afford to waste time and resources performing in clownish arenas with interlocutors of doubtful intellect or political integrity.

Mr Havi should eschew the cheap publicity offered by tabloids such as #JKL and, instead, undertake the patient work of rebuilding the intellectual and political might of the Society. The TV cameras and radio microphones will find him when need be. He shouldn't chase after them. And for goodness sake, the next time Mr Koinange offers him the opportunity to "debate" another talking head, Mr Havi should politely and firmly, decline.

Monday, June 08, 2020

Are you imaginative enough to be free?

If you have a child, that child's safety is most likely the most important thing in your life. If anyone harmed your child, you would exact retribution, terrible retribution. You will spend anything to keep your child safe. You will pass any law to protect your child from the evils of the world. So any law that punishes any person who even looks at your child cross-eyed will receive your full-throated support. So it must terrify you no end when someone proposes to abolish all the laws on the law books and start with a clean sheet of paper. Is that person some kind of monster that wants to sexually exploit your child and murder them afterwards?

The Constitution of Kenya is like Joseph's many-splendored coat. It covers a wide array of subjects. But its showpiece is Chapter Four, the Bill of Rights. Twenty-six separate separate rights and fundamental freedoms, recognised and protected by the Constitution, and an obligation imposed on every person to protect and defend those rights and fundamental freedoms. A decade after its promulgation, the edifice of laws, regulations, rules, guidelines and orders remains almost entirely unaffected. In fact, I'd warrant that they have been reinforced and bolstered in insidious and disturbing ways.

The core of the colonial-era law-and-order system remains unchanged - the Penal Code, the Criminal Procedure Code, the Civil Procedure Act. The National Police Service Act, the National Intelligence Service Act, the Kenya Defence Forces Act and the Office of the Director of Public Prosecutions Act are the filigree adorning the dark heart of the Kenyan policing apparatus that was designed to coerce, intimidate, misuse and abuse the civilian population, especially those who were poor and weak. Colonial administrators may have withdrawn from public service, but their spoor continues to contaminate our attempt to imagine freedom without the baggage of Black-is-evil philosophies.

A clean sheet terrifies many people. But it is debilitating for those who are incapable of imagination, having smothered it with Caucasian theories of crime and punishment, hence their reflexive, instinctive demand: what about the children?! That demand has successfully stifled debate for decades. While we may have successfully reorganised the coercive systems of government, we have not even began contemplating the complete rewiring of the systems themselves to reflect the central place that humans play in government, as contemplated in the Bill of Rights. Without such a rewiring, the Bill of Right's promise will never be fulfilled.

Even if the rewiring focussed exclusively on the care and protection of children, so long as it began with the question of what freedom looked like from the eyes of a child, half the challenge would have been met, with the balance to be met by drawing from our own histories of crime and punishment, law and order, peace and war, money and power, justice and fairness, education and training. If it takes a village to raise a child, what does that say about the child's relationship to its siblings, parents, extended family, village, leadership? What does it say about the child's place in the academy, work, justice systems, governance mechanisms? Is the child free or is the child the camouflage adults use to un-human each other?

I don't have the answers, and if I pretended to do so, I apologise. I hope that I have some of the right questions, though. I hope you have the breadth, and humility, to imagine anew what the Bill of Rights can free us to be.

Tuesday, April 21, 2020

Rona's lessons

If you have been paying attention, then you must surely have a clue who signs my paycheques. This is an important disclaimer for the amount of dissembling I am about to engage in.

My involvement with Rona begun on the 25th March. I had instructions to "assist" a team at an undisclosed location to work through various legal scenarios. Ordinarily, such instructions are in writing, and identify contact persons and focal points - a person in charge. My instructions also usually involve some sort of end-game, a document or documents that one can point to and say, "Maundu offered the following services and I am satisfied, dissatisfied, pissed the fck off, whatever." This time round, my instructions were vague, nothing beyond, "Pack a bag. Go to this place. Help out."

I wasn't unduly worried. Even with minimal instructions, once I know whom I am working for, it isn't that difficult to figure out what they need, whether their needs can be met, how they can be met and what success (or failure) looks like. I packed a bag. Had a spot of lunch. Took myself to the slaughter. Because, Jesus Christ on a Stick, even now I can't tell you what I was supposed to do, whom I as supposed to do it for, and what it was all supposed to achieve.

I am not a difficult man at the worst of times. I am almost always patient and accommodating - I once assisted another group prepare a draft document by taking them in painstaking detail through every possible scenario. On that occasion, I was on my feet for close to nine hours. In the end we had a document that they were happy with and I was happy I'd done some real lawyering for once. This past month has not been rewarding. Quite frankly, it has, to paraphrase Charles Dickens, been the worst of times. Not only were my instructions vague, they were never clarified even after repeated attempts to clarify them with various pot-bellied and self-important powers-that-be. I held out for three days. The day the nighttime curfew took effect, I took myself out of the whole thing. I told the man who seemed in charge that I had to go home for a change of underwear and never went back.

What I do isn't complicated or complex. It's a specialized skill for sure, but any decent student can learn it. It takes practice and patience to be competent at it and so long as one keeps an open mind, remembers the basics, knows which questions to ask, and has a general awareness of the current legislative environment, legislative drafting is not akin to sending a human to the lunar surface. I have had occasion to work with difficult clients. The types whose technical reach far exceeds their intellectual grasp but are too arrogant to admit their obvious limitations. (Just this month I entered into a shouting match with one who hilariously read me his resume and invoked the "Do you know who I am?" threat.) But almost always, they will see the wisdom of heeding my professional advice and work with me to solve their problems. (Even this latest shout-y one eventually bowed to my wisdom and now he is a happy camper.)

The people I was working with had absolutely no capacity to think beyond their narrow and white-knuckle-grip beliefs. They knew what they knew and regardless of whatever the situation demanded and whatever statutory tools were available, they had set their minds to a specific outcome and they would not be held back.  It was like dealing with the members of a religious cult - the followers of David Koresh or Jim Jones. So long as their leader had set them on a particular course of action, they would follow, no matter if the course led to absurd outcomes. It was frustrating dealing with adults, supposedly with minds of their own, who would set upon a lark simply because that is what Dear Leader apparently wanted. One can only attempt to advise such a group for so long. On the third day, I threw in the towel. And switched off my mobile. And then hell broke loose.

Every single bad idea that they had tried to get me to rubber-stamp came back to haunt them. Every bad instinct that I had tried to walk them back from, they merrily indulged in. Of course things turned to shit. Of course they tried to lay the blame on me. Of course they failed. The experience has left a bitter aftertaste. It has exposed something that I have been willing to overlook for the longest time. There are those who know their place in the world and who, when they try to escape their shackles, do so with wisdom and skill. Then there are those who are still in high school, where might made right and bullying got shit done. They are the ones who will lead us to hell and damnation. They are the ones who seem to be doing everything at once. Flitting from one crisis to the next. Wearing the tag of "super-manager" with ill-disguised self-satisfaction. Overbearing. Overweening. Arrogant. Smug. I am done with them. If Rona doesn't put paid to their schemes, nothing ever will.

Wednesday, April 15, 2020

A man can dream

Last decade, just after I came home from university, I worked for an investigative agency. We weren't the police and we had no police powers. But we played our part to make things easier for those who came to us for help. There were many illuminating experiences in my time with the agency but none as revealing as the lengths to which the men and women we call "leaders" would go to evade the consequences of their unlawful acts, even if the consequences were, to our untrained eyes, minor and trifling.

I have heard told on social media that Kenya's parliamentarians have eschewed the call to put twenty per cent of their salaries in the Covid-19 response kitty because, if the Leader of the Majority Party in the Senate is to be believed, many parliamentarians take home a pittance after all the deductions made to their pay cheques have been made in account of massive loans and other commitments. He claimed that he took home less than ten thousand shillings. Rather than another deduction from his parliamentary salary he would make his contributions from his farm income. That he couldn't see the irony of claiming penury when he had more than one source of income escaped him completely.

When these men and women add the honorific "mheshimiwa" to their names, it is almost always certain that their lives and the lives they led before that august day will be as night and day. Their new lives and your ordinary lives will be as oil and water. Within a few months of election, they have access to privileges and benefits that the ordinary Kenyan can only dream of. But the greatest privilege of all is the ability, bar the rare occasion when all fails, to escape the consequences of unlawful acts. Their State offices act as a shield against most, if not all, inquiries. What amazes most people who pay keen attention to the parliamentarian's metamorphosis is the abrupt and total disconnect between the parliamentarian and the people he or she leads.

It is why, when Kenyans are facing the gathering storm of post-Covid-19 damage, a parliamentarian with more than one source of income will blithely declare, shamelessly and unafraid, that he cannot afford to pay anything into a fund established to cushion the very people he leads. It is why he is not ashamed to claim penury. It is why he will engage in a war of words with senior colleagues of his over matters that have nothing to do with offering succour and assistance to the suffering people he leads. None of his pronouncements - indeed, none of his colleagues' pronouncements - are designed to ameliorate the suffering of the people. They are, however, meant to signal that they are very much still interested in getting reelected. And hitching their wagons to this, that or the other principal.

If for nothing else, we can thank the pandemic for revealing that 99% of what the parliamentarian does in public, we can do without. And that the many millions we shall pay them over a term in Parliament can be pared down substantially without jeopardising service because they don't actually serve us but rather their own base desires. Covid-19 continues to reveal us to ourselves. Whether we learn any lessons from these revelations remains unknown and unknowable - though, a man could dream.

Tuesday, April 14, 2020

Tragedy foretold

I once joked that when the worst came to the worst with this pandemic, don't let the soldiers or the lawyers take charge of affairs. The recent tragic affair in Siaya only serves to reinforce my prejudices against the uniformed and disciplined forces and the members of the legal profession. These two groups are incapable of dealing with any crisis with empathy, care or kindness.

Let us begin with my learned friends. When we graduate from university with our LLBs, more often than not, we usually have acquired many bad habits that are usually reinforced by the Kenya School of Law when we undertake the Advocates Training Programme. Among the bad habits is the certainty that with respect to the interpretation and application of the law we are infallible - and everyone one else is either a dilettante or a moron. We will not brook perceived interference from any quarter. In the past two decades, but more so since the Narc government came into office, this attitude has pervaded every sector, reaching its apotheosis with the series of statutory instruments that have been passed to respond to the Covid-19 pandemic. Save for the two declaring the disease as a notifiable disease and infectious epidemic disease, the rest of them have reinforced the worst instincts of trigger-happy policemen and their superiors.

Policemen and soldiers have the same attitude as lawyers - that the orders they have been issued with are infallible and require no re-interpretation. Watafuata amri, no questions asked. Tragedy has followed such rigidity. Worse still, corruption has accompanied every excessively coercive enforcement of the curfew and restriction of movement. You know it. I know it.

Don't misunderstand me. There are many uniformed and disciplined officers, and lawyers, who are honourable, kind, empathetic and judicious in the exercise of their powers and performance of their duties. You encounter them every day in the course of their work. They are members of your families, communities and workplaces. Your interactions enrich your lives in immeasurable ways. But collectively, and in the context of the system within which they function, you find them and their work to be difficult to parse because of the real harm they cause as they go about their duties.

It is those systems that refuse to countenance a different way of enforcing the law beyond the coercive, and why burials are conducted in the dead of night under the unremitting eye of armed policemen. It is why I deprecate policemen, soldiers or lawyers to be in charge of anything.

A burial is a complex event. It isn't merely the interment of the deceased. It is both a statutory requirement and a cultural event. It is ceremony and ritual. It is faith and culture. It is religion and duty. It is the fusing of physical, metaphysical and spiritual. It is NOT a security activity. I don't know of any Kenyan community, even urban Kenyan communities, where burials are conducted in the dead of night. I don't know of any sensible civil servant who would order and supervise a burial in the dead of night, even if the remains of the deceased were the modern-day equivalent of Typhoid Mary. But a system of unquestioning infallibility and rule-following leads to such absurd and tragic outcomes.

Finally, the inevitable habit of ass-covering totally militates against lawyers, soldiers and policemen being charge. Lawyers, especially bad lawyers, are adept at using language to shift blame, quite often on the victims of their certainty. The uniformed ones shift it upwards to the ultimate authority who is often beyond the reach of the victims. No, dear friends, find someone else to lead. Find someone who feels as you feel and who decides in such a way that you heal. At the very least, even if your leader makes a difficult and harmful decision, let that lead empathise with you and lead you through the aftermath with care. The legal and soldierly classes are not it.

Bullying will cost lives

I don't like bullies. I especially don't like bullies who use the colour of authority to grind their heels into the backs of the little guy. Systems that are built on oppression don't know how to do anything that smacks of helping the weak or vulnerable. They only know how to coerce and punish. These systems are reflected in the rules they make and the manner in which those rules are enforced. The Covid-19 pandemic continues to remind us of these simple truths.

On the 25th March, we were told that a nationwide nighttime curfew would be imposed on the 27th in order to maximise nighttime social distancing as many Kenyans had defied the earlier social distancing guidelines by visiting en masse entertainment joints - pubs, clubs, places of worship and whatnot. The rationale behind the nighttime curfew was sound, in the circumstances. The manner in which it was imposed and enforced was incredibly not. It was imposed by bullies and it was enforced by bullies. The ostensible reason for the curfew - the protection of the civilian population from harm - was not reflected in how the curfew was imposed - through police violence and the killing of at least five Kenyans.

It is written in other places that Kenya has a low-trust environment when it comes to interactions between governmental institutions and the people. The police are distrusted by many adults, if not the majority of adults. Through their sheer ubiquitousness, the police, armed and otherwise, are everywhere, imposing their will on everyone, but especially the workingman. For better and for worse, the police are the face of the governmental response to the Covid-19 pandemic. The health minister and his cabinet counterparts can give all the press briefings they want, but at the end of the day, the physical embodiment of the government's response to the pandemic is the policeman on the street, bullying and intimidating Wanjiku in the name of her safety.

I am not an epidemiologist or a public health expert. I couldn't begin to design an effective response programme to the pandemic. I don't know how many doctors, nurses or other healthcare workers we need to respond effectively. I don't know how many infected people need to be quarantined and isolated in order to protect the majority. I don't know where to find the money to pay for hospital personnel and equipment, or personal protective gear. I don't know which taxes to waive and for how long in order to ensure that the pandemic doesn't totally crater the economy. I don't know how to ensure that more people buy into the governmental message of personal hygiene (hand-washing), social distancing and collective responsibility. There are many, many things that I cannot do to respond to the pandemic. There are, however, trained and experienced experts who know what to do, how to do it, when to do it and how to pay for it.

They know or have the technical and professional knowledge and experience to determine what it will cost to effectively respond to the pandemic. Some are in government. Many are not. In a low-trust environment, one built on decades of oppressive governmental actions, it beggars belief (or it should, anyway) that experts are largely there as window-dressing. To be seen, and if heard, only as an indulgence and not as critical voices guiding the nation in a truly horrific challenge. You can tell that people who are trained to deal with an epidemic are not leading the conversation when the principal tool for responding to it is police coercive and violent force. And rather than design a response plan that deploys the police to assist the public health authorities, the health minister urges the people to "avoid situations" that invite police violence. Bullying, as a strategy, will not lead to success. It will lead to resistance. It will lead to resentment. It will erode what little trust government enjoys. And it will cost lives as it fails over and over.